Opinions released in January, 2010
Showing records 1 - 9 of 9 results
| Opinion number: 2010-006 | |
| Requestor: Houston, Brent City Attorney | Release date: 01/22/2010 |
| Full Opinion: HTML or PDF | |
| Request for review of the custodian's decision regarding the release, under the Freedom of Information Act ("FOIA"), of certain records pertaining to the civil service examination of a current city employee. RESPONSE: In my opinion, the custodian's decision with respect to a number of the documents is inconsistent with the FOIA. With the possible exception of a portion of one of the documents, each of the records is, in my opinion, subject to release under the test for "personnel records," after redacting the employee's score. See opinion for discussion. See A.C.A. 14-51-301 (civil service examination exemption). | |
| Opinion number: 2010-003 | |
| Requestor: Verkamp, John P. Lavaca City Attorney | Release date: 01/21/2010 |
| Full Opinion: HTML or PDF | |
| Request for review of the custodian's decision to release disciplinary actions from Mr. Dean's personnel file with the Lavaca Police Department in response to a Freedom of Information Act ("FOIA") request. RESPONSE: My duty under subsection 25-19-105(c)(3)(B)(i) is to state whether the decision of the custodian of records is consistent with the FOIA. I am unable to definitively state whether your decision, as the custodian, fully complies with the FOIA for three reasons. First, with regard to the items redacted, a conclusive determination would require a review of the unredacted records. I will state, however, as further explained in the opinion, that based on the information available to me, many redactions appear inconsistent with the FOIA. Second, many documents you plan to release detail disciplinary action that fell short of suspension or termination. For reasons explained in the opinion, whether these lesser disciplinary actions are subject to release depends on a factual decision that you, as the custodian, must make. Because you do not indicate your decisions about those factual matters, I cannot definitely determine that your decision to release many of the lesser disciplinary records is consistent with the FOIA. Third, you intend to release several documents that are neither personnel records nor employee evaluation records. Because these documents fall outside the scope of my section 25-19-105(c)(3)(B)(i) review, I cannot opine about their release. I will note, however, that many of these documents contain unjustifiable redactions. | |
| Opinion number: 2009-176 | |
| Requestor: Edwards, John C. State Representative | Release date: 01/15/2010 |
| Full Opinion: HTML or PDF | |
| Can an elected member of the General Assembly (State Representative) continue to serve as a member of the Arkansas National Guard and/or the United States Army Reserves? And, if so, are there any limitations to that service in the National Guard or the US Army Reserves? RESPONSE: The Arkansas Constitution expressly permits the member's continued service in the National Guard position he or she held when elected to the General Assembly. Ark. Const. art. 5, sec. 7; A.C.A. 12-61-101 (re. "militia officer.") Questions may arise under the Arkansas Constitution in the event of reappointment, or appointment to another position in the Guard. Ark. Const. art. 5, sec. 10; art. 4, secs. 1 & 2 (separation of powers). However, a federal law - the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. secs. 4301-33 - may preempt any state constitutional proscription and allow simultaneous holding of both positions in that event. Dual service in the U.S. Army Reserves and Arkansas General Assembly may also be approved by the USERRA. Because I am not an authority on this federal law, however, consultation with federal officials and/or with the U.S. Attorney's office is advisable in that respect. | |
| Opinion number: 2009-214 | |
| Requestor: Wasserman, Michael J. Sponsor, Ark. Hotels & Entrtnmnt, Inc. | Release date: 01/14/2010 |
| Full Opinion: HTML or PDF | |
| Request for certification of the popular name and ballot title of a constitutional amendment establishing casino gaming in seven Arkansas counties, and other purposes. RESPONSE: Popular name certified as submitted; ballot title certified as revised. | |
| Opinion number: 2009-194 | |
| Requestor: Bradford, Toni State Representative | Release date: 01/14/2010 |
| Full Opinion: HTML or PDF | |
| Is it unlawful for the city council to vote on a proposed ordinance amending the zoning code, which has been referred to the city's planning commission but not acted upon by that body in a reasonable period? Q2) What remedy does the city council have to compel the city's planning commission to act on a referred measure? Q3) Is an affirmative recommendation by the city's planning commission necessary for the city council to adopt the ordinance amending the city's zoning code? Q4) Does the mayor, as chair, have authority to refuse to permit a vote on a piece of legislation which has been read three times and for which a motion and second to pass has been made? Q5) If the mayor, as chair, refused to call for a vote, may the senior council member or other council member poll the council and declare whether the measure has passed? Q6) If the planning commission does not hold a public hearing in a reasonable time on the referred measure, can the city council hold a public hearing on a proposed ordinance relating to an increase in fines for zoning code violations and for imposing additional restrictions on land usage via the zoning code? RESPONSE: Q1): Yes, in this instance, because the city had not substantially complied with all applicable mandatory procedural requirements. Q2): I decline to answer because an answer would amount to the giving of general legal advice. Q3): Absent extraordinary circumstances, the council must obtain some sort of recommendation (in favor, opposed, neutral) before proceeding. Q4), Q5): These questions can be answered only by reference to local procedural rules. Q6): The council should hold a hearing in those extraordinary circumstances when the commission's recommendation is not forthcoming. See answer to Q3). | |
| Opinion number: 2009-149 | |
| Requestor: Phillips, Winford E. (Col.) Director, Arkansas State Police | Release date: 01/14/2010 |
| Full Opinion: HTML or PDF | |
| Does the exemption of subsection (5) of A.C.A. 17-23-102 apply to all persons doing business under the laws of this state or is that exemption applicable only to persons acting as a financial institution doing business under the laws of this state? RESPONSE: The exemption you ask about is subject to several interpretations. Because each interpretation has strong arguments in its favor, I cannot predict with any degree of certainty how a court would answer this question. I can and will, however, explain the alternative interpretations. Legislative clarification of this issue appears warranted. | |
| Opinion number: 2009-212 | |
| Requestor: Stewart, Chris H. Atty for Arkansas Progressive Group | Release date: 01/07/2010 |
| Full Opinion: HTML or PDF | |
| Request for certification of the popular name and ballot title of a proposed constitutional amendment to repeal all state taxes, enact a flat rate sales tax, and other purposes. RESPONSE: Popular name and ballot title certified as revised. | |
| Opinion number: 2009-215 | |
| Requestor: Sikes, Jeff Lonoke County Civil Attorney | Release date: 01/05/2010 |
| Full Opinion: HTML or PDF | |
| Is the decision of the custodian of records, citing no valid public interest and an unwarranted invasion of personal privacy pursuant to provisions of A.C.A. 24-4-1003, to withhold release of correspondence to or from the Arkansas Public Employees Retirement System related to the termination or retirement of the Lonoke County Treasurer and Lonoke County Clerk in response to a Freedom of Information Act ("FOIA") request, consistent with provisions of the FOIA? RESPONSE: I assume you ask both questions because both questions formed part of the custodian's decision to withhold the requested documents. Your first question is ambiguous. On the one hand, your question could mean that the custodian has found the request wanting because the request contains no recitation of the public's interest in the documents. On the other hand, your question could mean that the custodian has refused to release the documents because, having conducting the appropriate balancing test, the custodian determined that the employees' privacy interest still outweighed the preloaded side of the scale favoring disclosure. If the former is the custodian's basis for nondisclosure, then, for the reasons explained below, the decision is inconsistent with the FOIA, in my opinion. If the latter is the custodian's basis for nondisclosure, then I cannot opine for the reasons stated in the opinion. As for your second question, section 24-4-1003 is not a proper basis to justify nondisclosure in this situation, in my opinion. | |
| Opinion number: 2009-208 | |
| Requestor: Hall, John Wesley Attorney at Law | Release date: 01/04/2010 |
| Full Opinion: HTML or PDF | |
| Request for certification of the popular name and ballot title for a proposed constitutional amendment to legalize the medical use of marijuana ("medical marijuana"). ANSWER: Rejected. The popular name is likely misleading or partisan, and in my view the ballot title is deficient in its failure to fairly or completely summarize the effect of the proposed amendment with respect to changes in current law. I cannot substitute and certify a more suitable and correct ballot title because of ambiguities in the text of the measure. | |
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